Through a ruling with filing 11001-22-03-000-2024-01866-01 of September 11, 2024the Civil, Agrarian and Rural Cassation Chamber of the Supreme Court of Justice (hereinafter, the “CSJ”) resolved a challenge to a protection ruling against a judicial ruling.
The litigation arose from a claim filed with an insurer that issued debtor group life insurance taken out by a financial institution, to pay the unpaid balance of the debt owed by the insured who died. The claim was objected by the insurer due to the insured’s reluctance in the declaration of the risk status, as she had not declared several illnesses she suffered from.
Given the insurer’s refusal to pay compensation, a contractual civil liability lawsuit was filed against it. The first instance judge agreed to the claims, while the second instance judge revoked the ruling. Given this, a tutela action was filed against the second instance ruling before the Superior Court of Bogotá (hereinafter, the “Court”), which denied the requested protection. This decision was appealed by the plaintiff before the CSJ.
The CSJ confirmed the Court’s decision and resumed its arguments regarding reluctance and its legal consequences:
- Regarding the obligation of the insured to declare the state of the risk, the CSJ recalled the importance of this obligation of the insured and reluctance as a vice of consent for the insurer:
“So, the above enshrines one of the main and most important obligations of the policyholder, which It consists of truthfully declaring all the necessary circumstances so that whoever is going to cover the risk – the insurer – knows exactly what they are going to assume with the conclusion of the contract; and in this way, you can know in advance the obligations or burdens to which you will be subject. with the realization of the risk, and additionally, establish the conditions under which the contract must be stipulated.”
(…)
“Thus it is, when there is inaccuracy or reluctancea defect materializes in the insurer’s consent, since with this prevents the insurer from knowing exactly the identity of the risksince it may happen that, aware of the true state of the contingency, prefer not to enter into the contract or sign it under more onerous conditions for the policyholder (…)”
- The CSJ also took up the Court’s considerations on the application of the principle of good faith in the insurance contract when making the declaration of the state of the risk:
“That so-called “load of information” implies for the policyholder or insured the duty to disclose in a truthful and timely manner, in full compliance with the axiom of good faith, Furthermore, very special, the reality of the risk that is intended to be protected.
So things are, When a policyholder remains silent regarding “information” important for the expression of the insurer’s consent, the principle of good faith is ignored. that “obliges the parties to behave with honesty and loyalty from the conclusion until the end of its validity, because the effectiveness and compliance of the clauses provided therein depends on it”
- When applying these principles to the specific case and analyzing the documentary evidence provided to the process, the CSJ found that the debtor/insured had omitted to declare some of the illnesses she suffered before joining the group life insurance taken out by the company. financial institution and that, in the questionnaire proposed by the insurer, the existence or previous suffering of these diseases was inquired.
“Taking into account the previous statement and as if that were not enough, when reviewing the medical history that is provided to the plenary, it is noted that in fact before entering the policy, Mrs. (…) (RIP) He had suffered since July 19, 2017 from a malignant tumor in the liver called in the pathology report as “adenocarcinoma of the usual moderately differentiated and ulcerated pattern.””
(…)
“Additionally, the lady (…) was reticent in hiding that, since July 2017, (i) she had been diagnosed with carcinoma of the rectosigmoid junction, (ii) she was hospitalized for colon cancer with metastasis to the liver ( iii) she had undergone anterior rectal resection surgery (iv) she was being treated with chemotherapy, and (v) she had been ordered to receive treatment with Oxaliplatin, capecitabine, Ondasetron and Irinotecan.”
- In this order of ideas, the CSJ found the second instance judge’s decision not to condemn the insurer to pay compensation and declare the relative nullity of the insurance reasonable.
“As is more than evident, these facts were known to the lady (…), however, which At the time of requesting the policy, they were deliberately hidden from the insurance company, as mentioned in the aforementioned box.”
(…)
“Then, taking into account the above discussed, the factual situation heard serves as a bastion to assert that the defendant and appellant [Aseguradora] managed to prove fault or bad faith on the part of the policyholder, or in the words of the contestant, the concealment that it alludes to, at the time of declaring the state of risk with the subscription of the application for the policy that is the subject of the claim, while the good faith that protects it, in accordance with article 835 of the C. de Co., which was intended through the defensive means called “nullity of the insurance contract due to reluctance.” (…)”
If you want to consult the ruling 11001-22-03-000-2024-01866-01 click here.
